Giving Evidence

The practice of medicine in America is influenced by Tort law, which allows a wronged party to sue for damages arising out of the wrong that has been done to them. Wrongs include those resulting from medical negligence, such as physical harm, emotional distress, or financial loss. Doctors are judged by comparing their actions to the “standard of care”. This refers to the degree of attention, level of caution and prudence that a reasonable practitioner would exercise in the same circumstances. Playing into this definition are published guidelines, care pathways and recommendations that are applicable to the case. In a trial it often comes down to opinion, and here is where medical experts come in.

Treating Physicians

We may be asked to testify as treating physicians, where no opinion is sought. We testify to what we saw, what we diagnosed, the treatment we recommended, and the procedures we performed. This is usually straightforward although attorneys may try to extract an opinion out of us. It is wise to be accompanied by hospital attorney during the deposition so that we do not stray from “just the facts”.

Expert Witness

Testifying as an expert witness is different. This may be on behalf of a patient who you feel has suffered from true malpractice, for which compensation is just and necessary, or on behalf of a treating physician who you feel has been wrongly accused and deserves the best defense. Most of us are reluctant to enter this sort of battlefield, which is foreign to us, contentious, and often ill spirited. However, we are sometimes motivated to do so if our patient’s issue is particularly egregious, or if the suit against a colleague is clearly defensible. Some physicians make a living out of being expert witnesses. Each to their own, as long as moral standards, honesty and the truth are upheld.

In every suit there is a plaintiff and a defendant. Each has representation. The expert witness role starts with a record review that must be thorough, bearing in mind the details of the complaint. Then a deposition is held during which the witness is questioned about their opinions on what happened. In essence, did the doctor meet standard of care, and if not, what were the results of the malpractice? The extent to which the malpractice caused suffering, physical harm or loss of income will determine the damages to be sought. The attorneys will have a series of points that they want to make, with your help, and their questions will be designed to make those points. The opposing counsel has the right to object to any question, but the question is still asked and answered, and the objection ruled on later. It is wise to answer questions as briefly as possible, with a “yes” or “no” if that is appropriate, and not volunteering information that doesn’t immediately address the question. Don’t ad lib!! If you don’t remember an event, a conversation, or a circumstance, then just say that. Don’t make things up. Opposing councils are always trying to trap you and if you take a guess at an answer, they will likely have a document that proves your guess is wrong. They love that. You will not like it.

You will have been prepared by an attorney prior to the deposition and will have a good idea of the case, the questions and likely cross examination by the opposition. The purpose of the deposition is to allow the attorneys to have a preview of your trial testimony. You may have access to the depositions of the other witnesses…the patient, other experts, the defendant.

Depending on the merits of any case and the way the depositions went there may be a settlement before trial. If not, there will be a trial and you will give your testimony. This starts with careful preparation by your legal team. You will be coached about the questions you will be asked, the likely questions from the opposition, the personality of the judge, and any other relevant advice that your attorney wants to give. Then your credentials as an expert are established. This is important as it is part of the opposing council’s job to try to undermine your credibility. They can get nasty, but it is generally not personal. Sitting on the stand is uncomfortable, as the patient and their supporters are on one side and the defendant on the other. If you are witness for the defense the patient is looking daggers at you; if you are for the plaintiff, it is the defending doctor who is upset. The prospect of appearing as a witness for a patient is daunting, as testifying against a colleague can feel very like treason. Sometimes its necessary. The cross examination is also daunting as the opposing counsel is trying to undermine your evidence, to catch you out. They try to find a disagreement between your deposition testimony and your trial testimony, which then casts doubt on your entire opinion. It is essential that your answers are brief and to the point. Don’t get angry. Both counsels are often just as expert in their job as you are in yours, and both have done this many times. They know how to handle expert witnesses and the opposing counsel may try to provoke you. Be calm and respectful, and always tell the truth. Your side’s attorney will point out misleading arguments from the opposition.

If you are the defendant

If you happen to be a defendant your insurance company will assess your case to see if it is defensible. This involves employing an expert to review the case. If the case cannot be defended, they will settle. If it is defensible, they will proceed with the defense. You are an integral part of that defense and will be guided by your attorneys, who are the true experts here. Be as cooperative as you can be, have faith in them and the experts they employ, and follow their advice about depositions and trial testimony. Keep calm, be confident, keep your answers short and to the point, and tell the truth. And remember…no ad libbing!!!